P Dawson Nominees Pty Limited v ASIC & Ors [2008] HCATrans 409 (5 December 2008)

Last Updated: 11 December 2008

[2008] HCATrans 409

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M58 of 2008

B e t w e e n -

P DAWSON NOMINEES PTY LIMITED

Applicant

and

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

First Respondent

MULTIPLEX LIMITED

Second Respondent

MULTIPLEX FUNDS MANAGEMENT LIMITED

Third Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 5 DECEMBER 2008, AT 11.19 AM

Copyright in the High Court of Australia

__________________

MR N.J. YOUNG, QC: May it please the Court, I appear with my learned friend, MS W.A. HARRIS, for the applicant. (instructed by Maurice Blackburn Cashman)

MR G.O’L. REYNOLDS, SC: If the Court pleases, I appear for the first respondent with my learned friend, MS D. HOGAN-DORAN. (instructed by Australian Securities and Investments Commission)

MR A.S. BELL, SC: If the Court pleases, I appear for the second and third respondents. (instructed by Mallesons Stephen Jaques)

HAYNE J: Yes, Mr Young.

MR YOUNG: If the Court pleases, as the Court knows, I think, we have an application to add a new special leave ground. The application is consented to by ASIC, if that meets the convenience of the Court.

HAYNE J: Yes. If you simply proceed and we will come to it if we need to.

MR YOUNG: Yes. Mr Reynolds wishes to raise something, your Honour.

HAYNE J: Yes, Mr Reynolds?

MR REYNOLDS: Your Honours are probably aware that the two proceedings below, that is, at first instance and before the Full Court, took place in closed court and I am not asking this Court to close the Court in order to hear my learned friend’s application, however, we are concerned, as your Honours would appreciate, given this relates to informers to ASIC, that there not be any identification in this application of any person as an informer to ASIC either directly or indirectly. I have spoken to my learned friend about this issue and whilst we do not have an actual accommodation between us, we may have at least understanding. But I just wanted to make our position clear at the outset in case – and I hope this will not happen – I have to interrupt my friend on a particular issue.

HAYNE J: Yes. Yes, Mr Young?

MR YOUNG: Yes. If the Court pleases, the application is now to be founded on two grounds only. We will not persist with the other grounds. Can I identify them by reference to our summary of argument, your Honour. There are five special leave questions or paragraphs. They really amount to three questions. This is page 82 of the application book. Paragraphs 1, 2 and 3 relate to what I might call the Sankey v Whitlam point for the application of the immunity only to such parts of the documents as attract it. We do persist in that point, and I will deal with that second. We are not going to proceed with an application based on paragraph 4. That effectively propounded a failure by the Full Court to properly assess the balance in applying the public interest immunity test. That would require fresh evidence in this Court and that is not possible having regard to the decision of this Court in Eastman and, before that, Mickelburg. Thirdly, we are not going to proceed with an application founded on the last question – whether the application of the immunity was a discretionary judgment attracting the principles in House v The King.

HAYNE J: Now, as to the third ground being the ground you do not press, which is the question of further evidence, does that not point to a central issue on the leave question, namely, this is an interlocutory decision? It is an interlocutory decision where you at least once asserted that the decision was founded on an infirm factual foundation. Go back and do it again. Why should we get into it?

MR YOUNG: Your Honour, the ground we wish to agitate concerns not an interlocutory decision by the courts below, but a final decision applying the public interest immunity test.

HAYNE J: Final? In what sense?

MR YOUNG: Final in that the documents, the subject of the subpoena, have been held by the Full Court to attract the immunity. True it is we might seek to issue another subpoena, your Honour, but - - -

HAYNE J: No. Could you not apply again to inspect on a different factual footing? If no different factual footing, you would be met, I am sure, with very strong arguments about abuse, but if the factual foundations have changed, which I understood to be at one point an essential element of your case, could you not apply again?

MR YOUNG: No, your Honour. We considered and looked at the possibility of applying to the Full Court to reopen their decision.

HAYNE J: No. I am talking about applying to a trial judge.

MR YOUNG: Your Honour, in our submission, we would be met by the proposition that the Full Court has considered all of these documents and has concluded that public interest immunity is attracted. We are not in a position to say there is a different factual basis because we are excluded from knowing what information was put before the Full Court. His Honour Justice Goldberg I am not even sure knows what information was put before the Full Court. We cannot say that we have got facts necessarily that were not before the Full Court. They may be.

Reading the decision, we submit there is a fair inference that these facts were not before the Full Court, but we are not really in a position to make an application saying that circumstances have changed. Circumstances have not changed. We possessed the knowledge that the informer’s identity had been disclosed in the media by reference to his title and we knew from a direct personal conversation between the informer and my instructing solicitor the man’s identity, his position at Multiplex and the fact that he had been to ASIC to provide information. We knew those matters at all relevant times, so there are no new facts.

The issue that arises is because of the confidentiality procedures that his Honour Justice Goldberg was asked to accept at trial and because of the confidentiality regime in the Full Federal Court. We were not in a position to know that those facts can and should have been put before the court because they were not otherwise being put before the court. We did not even know the basis of the claim for public interest immunity – the court seeing Mr Watson’s affidavit. By the time we could draw an inference that those matters were not before the court from the Full Court’s reasons, the Full Court of its own motion had caused its judgment to be entered. That was on the next working day.

In those circumstances, there was no practical opportunity to approach the Full Court to reconsider the position, which would have been the first and correct step according to cases such as Pantorno in this Court. Judgment was perfected before we had an opportunity to reapproach the Full Federal Court. The Full Federal Court has now in two decisions – another Eastman Case and Pantzer – held that this Court’s decision in DJL concerning the Family Court and the entry of Family Court judgments should be regarded as binding authority on the Full Federal Court. So we cannot go back to the Full Federal Court to ask to reconsider and it is not a question of fresh evidence and changed circumstances. They were always there.

HAYNE J: They may always be there, but I understood the essence of your complaint just advanced to be that you did not know that there was an issue of the kind that has now emerged as determinative and that that not being known to you because of these extraordinary arrangements made for the hearing, apparently at the suit of ASIC, have placed you in a position of disadvantage where you did not know and it would seem a difficult position for ASIC now to adopt to say that having regard to procedures which they insisted should be followed in the Full Court, that you should be barred from making a fresh application having regard to what now has emerged. But be that as it may, we will hear later whether Mr Reynolds wishes to advance that proposition.

MR YOUNG: Your Honour, the possibility of a fresh application has not escaped us. We approached ASIC for their consent and it has been refused.

HAYNE J: I understand that. Yes.

MR YOUNG: But, your Honour, that does not mean – what we say is the extraordinary procedures that were adopted that excluded us from knowing the basis of the claim and then having any participation in it have procured a denial of natural justice to the applicant and they have brought about a risk of miscarriage of justice. I cannot put it higher than a risk because we do not know what Justice Goldberg’s decision says because it is confidential from us and we do not know what material was put before the Full Court because it is confidential to us, and special counsel appointed by us could not take instructions from my instructing solicitors or the client and could not convey information to my instructing solicitors or the client.

We do submit that the case raises the sort of issue that arose in Pantorno [1989] HCA 18; (1989) 166 CLR 466. Your Honour may have looked at that. It is in our list of authorities under tab 5. Can I draw the Court’s attention to the relevant passages? At page 474 in the joint judgment of Chief Justice Mason and Justice Brennan, just before halfway down the page:

Even if the point emerges clearly only when a court pronounces its judgment, it should be appreciated by counsel –

that they should move the Full Court. Their Honours go on to say at about three-quarters of the way down the page:

In the present case, the failure of counsel to seek further consideration of the natural justice issue once Bridges was overruled by the Full Court is a factor which counts against the grant of special leave.

HAYNE J: Speaking for myself only, Mr Young, I need no persuasion that there were difficulties, most likely insuperable difficulties, in your moving the Full Court once the judgment was entered as promptly as it was, but is that what you are directing this branch to or to a different point?

MR YOUNG: No, your Honour. The court goes on to say that in those circumstances, special leave should be granted to correct a breach of procedural fairness in the interests of the administration of justice. It is the last four lines on page 474.

HAYNE J: Yes.

MR YOUNG: At page 475, it is about three-quarters of the way down the page and the last few lines going to the top of the next page. At 476, their Honours say that special leave should be granted and an appeal allowed to correct an injustice. The other joint judgment of Justices Deane, Toohey and Gaudron reached a similar conclusion.

HAYNE J: But all this in a context where you could not go back to a trial judge. The premise that I seek your help about is whether it is now open to you to go back to the primary judge, making fresh application for leave to inspect that which is produced to the court on the footing that you know what you say you know. When you became aware of it no doubt would become a matter of forensic emphasis against you, to which it may be that the complete riposte would be, “Well, you, ASIC, have created this problem. It cannot be for you to be heard to say that we should have moved earlier since you excluded us from every step along the way”. Now, is the premise false? If it is, where?

MR YOUNG: Your Honour, Justice Goldberg will be bound by the decision of the Full Federal Court to the effect that these very documents attract public interest immunity. His Honour cannot leap over that Full Federal Court judgment on the basis that there may be some material that he is now offered that they may or may not have had. He will nonetheless be bound by that perfected judgment of the Full Federal Court because it holds that these documents attract public interest immunity.

HAYNE J: That suggests there is an estoppel or preclusion by the order made in an interlocutory appeal.

MR YOUNG: Unless reopened, your Honour, and the only way of reopening the full Federal Court’s decision is to ask this Court to set aside the decision of the Full Federal Court on exactly the same basis, denial of procedural fairness, that the Court of Criminal Appeal’s decision was set aside in Pantorno. That then would permit us to make the application for the introduction of fresh evidence to the Full Federal Court, and the Full Federal Court would be able to consider the significance of the fact that the informer to ASIC here had his identity disclosed in the media in Australia and had voluntarily disclosed his own identity to my instructing solicitor. That point itself is a point of general public importance.

I am not suggesting that is part of our application for special leave, but if we were to get to reopen the matter before the Full Federal Court, the question of whether the immunity is displaced by voluntary disclosure by the informer himself has only been considered on one occasion. It is the case of Savage v Chief Constable of Hampshire. There the Court of Appeal held that that was a question, it was a novel question that had not previously arisen, but their Lordships held that the immunity was displaced. I am afraid it is not in the authorities. I will hand it up to your Honour.

HAYNE J: No matter.

MR YOUNG: There is a point of real substance arising out of this. It is the question – a novel question in Australia, of whether immunity is – the passage, your Honour, is at page 1066, C to D.

HAYNE J: This is (1997) 1 WLR.

MR YOUNG: 1061.

HAYNE J: Yes. Thank you.

MR YOUNG: At page 1066, C to D.

HAYNE J: Thank you.

MR YOUNG: There are other passages, but that will suffice.

HAYNE J: Yes.

MR YOUNG: Your Honour, we submit we are in a conundrum. The same conundrum arose in Jones in this Court. It arose in Pantorno. Jones was a Court of Criminal Appeal failing to address all of the grounds of appeal – perfect a judgment, High Court sets it aside to send it back to the Court of Criminal Appeal to complete the appeal. This is analogous. In our submission, your Honour, we would be faced with an insurmountable obstacle before the trial judge that there is a decision holding that these documents attract public interest immunity and the only way of undoing that is to go back to the Full Court.

So, your Honour, we do submit there are authorities in this extraordinary situation that say that it is a special leave ground both because of the interests of the administration of justice – and we would add here that the fairness point, that we were shut out, does raise itself a question of general importance. That is because the way in which public interest immunity claims are conducted and the adoption of procedures such as those adopted here is a matter of public importance. It raises important interests or principles of open justice. Here there was even a refusal to identify the ground of public interest immunity. This kind of gaming – that immunity is not unexceptional, your Honour.

Therefore, the adoption of what we submit were inappropriate procedures raises important questions of public importance relevant not just to this case, but other cases in which immunity claims are advanced without a proper opportunity to argue with them and with concealment of the real basis of the claim. Unless this is reopened, your Honour, this will be a standard that remains in place, and it ought not to.

HAYNE J: Mr Young, do I find in the application book the text of orders which gave effect to this regime of non-disclosure?

MR YOUNG: Yes, your Honour. There is a confidentiality order made by Justice Weinberg at page 22 of the application book.

HAYNE J: But your application is not for leave to appeal; it would be not competent to appeal against that order.

MR YOUNG: No.

HAYNE J: Was that order put in issue in the Full Court?

MR YOUNG: No. It was a - - -

HAYNE J: Where I am heading, Mr Young, is whether the issues, the importance of which I well understand, about these extraordinary regimes – whether in fact they would arise if leave were to be granted or whether you would be precluded from debating them because they were not in issue by appeal in the Full Court. Do you understand the difficulty I am - - -

MR YOUNG: I do, your Honour, but it is entangled with these difficulties because this order was applied by the Full Court in the course of the hearing.

HAYNE J: Yes.

MR YOUNG: So-called special counsel appeared for the plaintiff without an ability to obtain instructions or to convey information. I am not sure what it was they could do. It touches on the redaction argument because the court asked the parties to consult about redaction of the documents to confine it to what was truly capable of attracting immunity. The parties could not agree, but my clients could not consult with counsel about the problem. The court never addressed the documents themselves.

In our submission, the second point, the Sankey v Whitlam point, is that the court simply cannot say, “There has been no agreement between the parties. Therefore, we will extend immunity to the lot”. In Sankey v Whitlam, the High Court itself inspected the documents and confined them to those passages where the immunity was truly attracted, and we have given the references. If the Full Court did not want to do it, they could have remitted that exercise to the trial judge. But you cannot simply extend the immunity holus bolus to the whole of the documents. These were 41 transcripts. My clients are only interested in admissions by senior executives as to what they knew and when about the Wembley cost overruns and delays, full stop.

HAYNE J: I think we understand the redaction point, Mr Young.

MR YOUNG: Yes, your Honour. Those are our submissions.

HAYNE J: Yes. Thank you. Yes, Mr Reynolds?

MR REYNOLDS: Your Honours, can I pick up the matter that your Honour Justice Hayne has raised with my learned friend? That is the question of whether or not these proceedings were interlocutory and whether or not - - -

HAYNE J: Can you come directly to the point: is the complaint that is now made a complaint that can be made only on appeal to this Court or is it open to the plaintiff in these proceedings to go back and apply again for inspection?

MR REYNOLDS: It is certainly open for them to.

HAYNE J: Yes, and what attitude would ASIC take to such an application, Mr Reynolds?

MR REYNOLDS: I would need some instructions on that, your Honour.

HAYNE J: Exactly, Mr Reynolds. What submission do you make to us?

MR REYNOLDS: I do submit that if there are fresh facts and that the application is not an abuse of process, there being no principle of res judicata applying to any interlocutory - - -

HAYNE J: I understand that to be the principle, Mr Reynolds. What I am asking you is what is ASIC’s submission to this Court in answer to the proposition that is in question.

MR REYNOLDS: As a matter of theory, we accept the proposition that your Honour put to my learned friend, and I hope I made that clear.

HAYNE J: Can I make this clear to you, Mr Reynolds, and those instructing you? For the moment, I proceed on the basis that in the circumstances of this case ASIC contends the plaintiff is barred or it does not deny its capacity to make that contention. Is that plain?

MR REYNOLDS: That is plain, your Honour.

HAYNE J: Yes.

MR REYNOLDS: We do not assert there is any legal bar to my learned friend making that application. It would be an impossible submission, and I do not make it. As your Honour put to my learned friend, this was an interlocutory application. If there is fresh material and the proceedings are not otherwise an abuse of process, we accept, of course, that the matter could be reopened before a single judge. Depending upon the facts and the argument, there might well be a basis for reopening it. That is why we submit this application is fundamentally misconceived. It is not an application – if this were to be run before this Court, the matters that are the subject of the affidavit of Mr Watson, which my learned friend filed a couple of days ago, would need to be the subject of a rather vigorous factual contest.

Our leaving to one side the position in relation to section 73 of the Constitution I would submit is a matter of practice, given that there is an alternative avenue available to the applicant to seek relief – that that is the appropriate avenue which the applicant should rely on. I take it from what your Honour Justice Hayne has said that your Honour is, in effect, suggesting that to my friend.

So far as the argument about miscarriage is concerned, I can go into that in greater or less length. Your Honour Justice Hayne might well say to me, “Well, these are matters which can and ought be discussed up hill and down dale before a single judge”. We concede that it is open to my friend to attempt to do that. But can I take issue briefly, at least, with some of the propositions which we understand to be made on behalf of the applicant?

The first is a proposition that somehow the applicant to these proceedings did not know that the public interest immunity claim in this case involved informers. Can I deal with that by reference to the affidavit of Mr Watson, which my learned friends filed about 48 hours ago?

HAYNE J: You read this affidavit, do you?

MR REYNOLDS: I understood my friend had, in substance, read it. In paragraph 10, your Honours can see a quotation from my predecessor, Dr Flick, now Justice Flick, where he sets out the basis for the claim referring to confidence, secrecy and sources on a number of occasions. In addition, at paragraphs 5(d) of this affidavit, 13 and 16, there is reference repeatedly to the deponent – I note the deponent alone – being unaware that the claim rested solely on the ground of informed privilege. That occurs again and again. That is quite consistent with knowing that a public interest immunity claim based at least in part on the existence of informers was one of the reasons for the claim of public interest immunity.

In addition, the deponent only deposes to his own understanding of things, not the understanding of any of the counsel or any of the other solicitors in the matter. We submit it is fairly clear from this affidavit alone that Mr Watson, at least, appreciated or would have appreciated that the informer basis of public interest immunity was part of this claim. So that is the first matter.

The second matter is an assertion which we understand to be made that, in effect, the applicant, Mr Young’s client, was prevented from putting material before the court. We submit, and we have the transcript if your Honours need to look at it, that there was no reason why if the applicant wanted to put material before Justice Goldberg it could not have made application to do so. Indeed, it could have invited my client to have put whatever material it wanted put to the court by way of a letter. Given that to some extent the proceedings were ex parte, then obviously my client may well have been under various duties to alert the court as to that.

In addition, we submit that there is no reason at all why counsel who represented the applicant before the Full Court could not have put any material that he wished, having garnered from the appeal books, if necessary, what material it was that he wished to put before the court.

The other matters I need to deal with are a couple of matters related to the program which is referred to in Mr Watson’s affidavit and the assertion which we understand to be made that there was no material before the court relating to the program. Now, I have a slight procedural difficulty here, your Honours, and that is that this material which I would like to refer to was heard in camera before the Full Court. Your Honours have perhaps seen that there is an affidavit, I hope, which has hit the file of my instructing solicitor, Ms Anna Skreiner, dated 4 December 2008.

HAYNE J: No. I do not have it.

MR REYNOLDS: Can I hand - - -

MR YOUNG: We are not allowed to have it, your Honour.

HAYNE J: Is this an affidavit that is, what, to be made available only to the Court?

MR REYNOLDS: The affidavit has been made, as I understand it, available to my friend, but there is a confidential exhibit which relates to material before the Full Court and if I have to, I will need, of course, to seek various orders in relation to that.

HAYNE J: Mr Reynolds, what is it you seek to do? You seek leave to file in Court, do you, an affidavit?

MR REYNOLDS: I do.

HAYNE J: Why should you have that leave?

MR REYNOLDS: Because we are responding to an affidavit which was served, I think I am correct in saying, approximately 48 hours ago and the occasion for responding to it did not arise before then and we have had to consider our position in a very short timeframe and to respond accordingly. That is the reason why your Honours should receive it at this late stage, I submit.

HAYNE J: The affidavit you seek to file in Court contains information that is to be made available only to the Court; is that right?

MR REYNOLDS: That will be my application, not that - - -

HAYNE J: Why, on an application for special leave, should we proceed in that fashion, Mr Reynolds?

MR REYNOLDS: For this reason, because I need to try and gainsay an argument that is put against me about whether various matters were raised before the Full Court. That is why I need to put it before your Honours. As to the issue of why - - -

HAYNE J: In aid of what legal proposition?

MR REYNOLDS: It is to negate an argument raised, vis-à-vis, miscarriage that the Full Court did not have material before them. In order to negate that proposition, I have to show your Honours what was before the Full Court in the in camera hearing. The reason I have to keep it confidential is that if I were to do otherwise, that would destroy the very privilege which my client is trying to protect.

HAYNE J: Why is not sufficient for your purposes to say that it is disputed that the material was not in issue?

MR REYNOLDS: It is and, with respect, I - - -

HAYNE J: If that is sufficient, we need not have the affidavit.

MR REYNOLDS: As your Honour pleases. The final matter that I wanted to raise is the question of whether this material, this program, et cetera, referred to in Mr Watson’s affidavit – whether there is a miscarriage because this would have made some difference. These media publications do not name the informer. They are simply media speculation. In the application book at pages 45 to 46, there is reference at paragraph 37 of the judgment to two decisions – the first a decision of the South Australian Full Court in Haydon, and there is a quotation from that decision at the top of page 46 which refers to the decision of the New South Wales Court of Criminal Appeal in Smith.

We submit that these cases, that is Haydon and Smith, make it clear, as is noted at the top of page 46, that:

The disclosure of the name –

and even that has not happened here –

of the maker of a statement is not the end of the matter. If disclosure were the end of the matter then, as the court observed in Smith . . . the public interest immunity “could be frustrated by an accident, or by the malice of a witness who blurted out the name of an informer in open court”.

We do not concede that this man is an informer, but making that assumption against us, we submit that this disclosure in this program could not have made any difference. In short, we submit that there is no miscarriage in this case and, in addition, that there is an alternative procedure available to my learned friend and that is to reopen the argument before a single Justice.

My learned friend also raised what he called the Sankey v Whitlam point. I understand my learned friend, Mr Bell, is going to address your Honours on that and I anticipate that we will adopt his submissions. But subject to that, those are my submissions.

HAYNE J: Yes. Thank you. Dr Bell?

MR BELL: If the Court pleases, there are three brief points we would seek to make. In addition to the reference Mr Reynolds gave the Court by reference to Mr Watson’s affidavit, namely, to that part of Dr Flick’s statement in open court session as to the basis of the claim which referred to source, et cetera – and that goes to one of the building blocks of the applicant’s argument, namely, we did not know the basis – could I also give your Honours this reference to, again, part of that oral open hearing before his Honour Justice Goldberg at page 20 of the transcript, where Mr Hutley for the applicant then said:

Now, my learned friend, this morning in open court, has disclosed for the first time that what we are dealing here is that we are concerned with the means by which ASIC became aware of the - - -

HIS HONOUR: The means by which the information came into the possession of ASIC - - -

MR HUTLEY: And the identity of - - -

HIS HONOUR: Well, he called it “the source,” - - -

MR HUTLEY: The source.

HIS HONOUR: - - - of the information which came into the possession of ASIC.

Now, I only draw that to the Court’s attention because it supplements in a sense the evidentiary reference given by Mr Reynolds and casts some doubt on one of the building blocks of our friend’s argument, namely, we did not know the basis of the application. That is a building block for the miscarriage argument. Otherwise we adopt what Mr Reynolds has said on that point.

The second submission I would make is this. My learned friend, Mr Young, drew the Court’s attention to Pantorno and Jones and said this was an analogous case. It is not, for this reason, and this is a difficulty for the applicant. For the applicant to advance its denial of natural justice case, unlike Pantorno, it would not be a question of saying the court below had before it five grounds, it did not deal with two of them. We were not given a hearing in respect of those two grounds. That is a scenario which may well entail a denial of natural justice and we know the court in Pantorno granted special leave to appeal. The reason the analogy breaks down is for this complaint to be made good in the High Court would require the adducing of evidence and yet Mr Young has conceded the Mickelberg point or the Eastman point, so the analogy, in our submission, breaks down.

The third point is this. In relation to Sankey v Whitlam and the complaint still pressed by ASIC that the Full Court should for itself have engaged in the review of the 44 transcripts and the 36 documents, a very important point of distinction is this. In Sankey v Whitlam of course it was only the Court and the Crown who had access to those documents. The parties seeking access did not have access to the documents. In this case the situation was very different because of the special counsel procedure adopted.

In this case it is important to bear in mind that special counsel for the applicant had the documents and had the transcript and, as we read the Full Court’s judgment, special counsel had the opportunity and was almost certainly invited by the court to engage in, to assist the court, in the excision or marking up procedure. In other words, it was open to the applicant to suggest to the court, “Here is the transcript. Our submission is that the portion which is not marked could not possibly attract the protection”.

It is clear from a reading of the Full Court’s judgment that that opportunity was not taken up by special counsel then appearing for the applicants, rather, a decision was made, forensic decision, to fight the matter at a level of high abstraction and generality. So the case is distinguishable from Sankey v Whitlam because in Sankey v Whitlam it was only the Court who could do it.

In the Full Court the court, not unreasonably, in my submission, given the apparent volume of documents, invited and/or it was open to the applicant to make the submission specifically by reference to documents and we give that guidance and that opportunity was not taken. That is, in my submission, a cogent response to the complaint. But in any event, it is not something which raises a matter of principle.

Your Honours, the final point we would make is this, and it may be more for ASIC than for the second and third respondents, but we note that in the affidavit filed and apparently read, or parts apparently read, on this application there is in paragraphs 25 and 27 a reference to the identity of what the applicant claims is the informer. That is not material hitherto, as I am instructed or as we understand it, in the public domain, the specific identity of the name, et cetera, not the subject of the Four Corners program or the media reports referred to, so it may be an appropriate case for the Court to consider an order treating paragraphs 25 and 27, or at least the identity of the informer, or alleged informer, confidential as between the parties, bearing in mind that the affidavit, if it has been read and to the extent it has been read, may be accessible on the court file. It is a matter which may go, in other words, to the subject matter of the litigation.

HAYNE J: It has been now twice asserted that the affidavit is to be taken as treated as read. It is not apparent to me that Mr Young relied on it. If that is so, it is not accessible.

MR BELL: If it please the Court.

HAYNE J: Just before you sit down, if this matter were to be reagitated before a single judge, do the parties for whom you appear have any foundation upon which to be heard in relation to the question of public interest immunity?

MR BELL: In our submission, yes, your Honour, by reference to the principles and the authorities which are noted in paragraph 5 of our submissions at 97 of the application book.

HAYNE J: If that is right, what do you say about the availability of reopening?

MR BELL: Your Honour, as I sought to indicate by reference to the passage from the transcript and the passage Mr Reynolds referred to as to first the building block or the first premise of the argument, that is a matter which may – and it would be for ASIC rather than my clients, it being ASIC asserting the privilege – but that is a matter which may be a factual issue and I would not be in a position to make a blanket concession because it may be that that factual issue would be resolved in a way which demonstrated (a) that the applicant had the material, (b) that the applicant was apprised or sufficiently apprised of the basis of the application. After all, this is not a case which, on any view, could have been about Cabinet documents, national security, et cetera. It is not difficult to guess one might have thought that the privilege under - - -

HAYNE J: Yes. Parties are not ordinarily left to guess what the case against them is, Dr Bell, nor are parties ordinarily left to guess about the basis of claims made against them.

MR BELL: Well, your Honour, two points: (a) the passage is in open court, but, of course, the applicant was represented by special and senior counsel before the Full Court where the basis must have been disclosed and known to it. So the only reason I am hesitating in giving your Honour a – we would accept that it is interlocutory in character and we would accept that it would be open to the applicants to return to a primary judge - - -

KIEFEL J: The only qualification is on a proper factual basis, is that right?

MR BELL: On a proper factual basis and we are not in a position to accept in part because I do not know and we were not privy to the – well, we are not totally across and have not had a proper opportunity to analyse in full Mr Watson’s carefully worded affidavit which refers in three places to
not being aware that the sole basis for the claim was in form of privilege, which may or may not be carefully chosen language. But we would accept, your Honour, that an approach could be made to the primary judge on the basis of changed circumstances or a sufficiently altered changed circumstance or a sufficiently exceptional circumstance to found an application. Whether the factual underpinnings of that application of that approach would be made good, I cannot give any indication without instructions as to the attitude we would take. I think in that regard I am probably in the same position as Mr Reynolds. May it please the Court.

HAYNE J: Yes, Mr Young.

MR YOUNG: Your Honour, can I deal with the possibility of reopening before Justice Goldberg. Mr Reynolds for ASIC was very careful to say that we could make an application, there is no bar to making an application, but he did not give any undertaking not to oppose the application on instructions from ASIC, nor did he accept that he would submit that there was no binding force so far as Justice Goldberg was concerned in the Full Court’s order. ASIC has previously written to us to this effect:

Because public interest immunity is a matter for the Court, you will appreciate that it is not possible for ASIC to waive or compromise the Full Court’s determination.

Dr Bell likewise said, in effect, that an application could be made, but as to opposition to it, his client would put in issue the question whether there was any proper factual basis for such an application. He did not address the submission that might be made about the binding force of the Full Court’s decision at all.

Now, even if relevant undertakings were provided by both respondents not to oppose the reopening in any way, including not trying to rely upon the Full Court’s decision as a barrier to reopening, that would not resolve our difficulty because Justice Goldberg would still be confronted with a Full Court decision that these documents attract public interest immunity. Our submission is that we do not see how, in those circumstances, Justice Goldberg could entertain the application.

KIEFEL J: On the other hand, if you are given leave to appeal, this Court would have to deal with the factual dispute concerning the Full Court. I mean, you put this Court in the same position as a trial judge or a single judge would be.

MR YOUNG: No, your Honour. Can I address your Honour’s question and can I do it by reference to Pantorno. Dr Bell misdescribed Pantorno. It was Jones that was about the failure to deal with all grounds of appeal. Pantorno concerned the denial to an accused of an opportunity to make submissions on sentencing. The trial judge had acted on the basis one section applied contrary to the agreement of the parties that a different section applied. The Court of Appeal had reversed that and reversed an earlier decision. That changed the basis on which the offence was to be understood and there was no further opportunity given to the accused to put submissions about that.

So that was a case like this where the party denied an opportunity to be heard wanted to put submissions. The affidavit demonstrates merely in the context of a High Court appeal that we wanted to put submissions. We had substantial matters about which to put submissions. So long as it is accepted that – the point is we were denied an opportunity of being heard and it was not a futile opportunity, there were things we could submit. I can say that from the Bar table.

The High Court would not be dragged into any evidentiary dispute about the matters in Mr Watson’s affidavit. The issue would simply be whether the procedures that were adopted deprived the plaintiff of an opportunity of being heard about matters going to the applicability of informer privilege with a resultant risk of miscarriage of justice.

KIEFEL J: But the question of opportunity would depend to a great extent upon knowledge, would it not, prior knowledge?

MR YOUNG: No, with respect, we say not, your Honour, because on any view of things we submit that the basis of the privilege, the claim for immunity, was not properly identified. The highest they go is to say, by reference to vague descriptions like means and sources, which generated a physical problem, we should have guessed that it was all based on informer privilege, when they could easily have said informer privilege. We should not be left to guess, and one does not need much more facts than that.

HAYNE J: But even if the issue of informer privilege was sufficiently flagged, is it open to a trial judge to make an order for inspection of these documents on the grounds that even if one is privileged circumstances have now changed?

MR YOUNG: Well, we see difficulty, your Honour – and I am not trying to invent difficulty – we see difficulties in the fact that the facts were known to us all along and the defective Full Court judgment.

HAYNE J: Yes.

MR YOUNG: No doubt we will try and argue that, your Honour.

HAYNE J: Yes.

MR YOUNG: Can I make two other points briefly?

HAYNE J: No, I think your time has elapsed, thank you, Mr Young.

MR YOUNG: Yes, your Honour.

HAYNE J: Yes, we will adjourn to consider the course we will take.

UPON RESUMING AT 12.16 PM:

HAYNE J: The applicant in this matter makes two complaints. First, that the Full Court of the Federal Court of Australia should have, but did not, sufficiently consider redaction of the documents in question in the fashion indicated in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1. The second is that there has been a miscarriage of justice because the matter has proceeded in the courts below on an imperfect factual foundation. The applicant contends that the procedures adopted in the courts below caused or contributed to the imperfections in that foundation.

Australian Securities and Investments Commission submitted that one reason not to grant leave is that the applicant has an alternative remedy available, namely, to apply to reopen the question of inspection before a single judge of the Federal Court of Australia. The Multiplex parties did not submit to the contrary. On the face of it, it appears that it is open to a primary judge to reopen the interlocutory order that has been made precluding inspection at least if, as the applicant alleges, the factual foundations for that order were not sound, or, we would add, if circumstances affecting the existence of the privilege have changed in the time between the making of the order and the new application for leave to inspect.

We are not persuaded that this is a case in which the Court should depart from the general rule so often stated that only rarely will it intervene in interlocutory processes in the courts below: see, for example, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170.

Special leave is refused. It must be refused with costs.

AT 12.19 PM THE MATTER WAS CONCLUDED